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Motion for default based on tenant’s failure to respond to eviction complaint within five business days and deposit monies into court registry is denied where tenant filed motion to dismiss due to fatally defective three-day notice in open court at hearing on motion for default

The battle between the jurisdictions as to whether the tenant automatically looses the eviction for failing to post the rent within five days of being served  (the chicken),  or whether the landlord looses if the 3 day notice is defective (egg)  continues to rage on.

The tenant was served with a complaint for eviction April 18, 2012, but did not deposit the rent into the court registry within five days.

The landlord filed for a default which the court set for hearing on April 27, 2012.   At the hearing the tenant filed a motion to dismiss based on a defective 3 day notice.

The court ruled denied landlord’s motion for default on the following basis:

That the tenant did not waive the right to present the arguments alleged in her Motion to Dismiss by failing to file the motion within five business days, after service of process. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009) (acknowledging a defective three-day notice can be attacked for the first time on appeal).

The Fifth District Court of Appeal acknowledged alleging the complaint fails to state a cause of action can be raised by motion even after default. Appel v. Lexington Insurance Co., 29 So.3d 377 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D481a].

Under the Florida Rules of Civil Procedure, a challenge to the court’s jurisdiction can be raised at any time. Fla. R. Civ. P. Rule 1.140. (emphasis added).

Furthermore, even if Defendant did not file any pleadings or motions in this action, the Court finds no Clerk’s Default was entered in this case prior to the hearing on Plaintiff’s Motion for Default and that would have been grounds to deny the motion at that time pending Plaintiff obtaining a Default from the Clerk’s office.


ROY VAZIRI, Plaintiff, vs. TASHA STENGER & JEWELL PAUL EDWARDO, Defendants. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-004178-O, Division 72. May 29, 2012. Wilfredo Martinez, Judge. 19 Fla. L. Weekly Supp. 861a